HKSAR v. Wong Tak Sum

DCCC 800 /2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 800OF 2012

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Reasons for Sentence

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Charge and facts

1.In the evening of 27 June 2012, the police in an anti-narcotics operation intercepted the defendant when the latter alighted from a taxi to enter a park in the Hoi Lai Estate, Lai Chi Kok.  They found 7 packets of ketamine in powder form from his trouser pocket.  The gross weight was 93.99 g, containing 70.49 g of ketamine.  Upon caution, he said the ketamine was for self-consumption, not for sale. 

2.He held 2 mobile phones and $2,920 cash. The estimated street value of the drug was $10,809.     

Personal background and mitigation

3.He is 17 years of age, F. 2 education level.  He is unemployed after dropping out of school.  He has 3 convictions: acting as MOTS, blackmail and theft in a single court case which resulted in a Detention Centre order he has been serving since 18 July 2012 up to the present moment. 

4.His solicitor puts up the case of Secretary for Justice v. Lau Shing Kit CAAR 8/2011 (to which I shall refer in detail hereinbelow) and asks me to call for a Training Centre Report.  I go by his request whilst having the defendant acknowledging that a prison term is most likely and he shall be fully prepared for it.    The Training Centre Report states that he is suitable for the place.  His solicitor urges me to make an order accordingly. 

Sentencing considerations

5.Section 109A of the Criminal Procedure Ordinance, Cap. 221, provides:

(1) No court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition.

(1A) This section shall not apply to a person who has been convicted of any offence which is declared to be an excepted offence by Schedule 3.

6.The offence of trafficking in dangerous drugs is among such excepted offences.  Thus the consideration of a prison term is on a par with all institutional alternatives.    

Sentencing guidelines

7.In HKSAR v Hii Siew Cheng [2007] 1 HKLRD 1, the Court of Appeal states for 50 – 300 g of ketamine, the sentence shall be 6 – 9 years.  Our present case involves 70.49 g of ketamine.   

Secretary for Justice v. Lau Shing Kit CAAR 8/2011

8.His solicitor puts forward this case as an illustration “on all fours” which ended up in a Training Centre Order.  The 17-year-old respondent there trafficked in over 180 g of ketamine.  Deputy Judge Longley sentenced him to the Training Centre.  The prosecution appealed sentence. 

9.Here is a chronology of the facts in the case:

2010

Aug D arrested for 1^st theft from a cyber café

Sep D received supt caution for it

Dec D arrested for 2^nd theft, given bail

2011

6/1 D arrested for subject TDD case

11/3 Magistrate sentenced him to DC for 2^nd theft

29/8 Release from DC of 2^nd theft

PG to subject TDD case before Dep J Longley

19/9 Dep J Longley sentenced him to TC based on a favourable TC Report

10/10 CJHC granted leave to DOJ to review sentence

2012

31/5 CA dismissed review of sentence

10.Delivering the judgment for the Court of Appeal, Stock VP dismissed the review but observed that:

(1) In line with well-established authorities, in sentencing drug traffickers of a large quantity, a policy of general and stern deterrence is paramount (para 19);

(2) A prison term ought to have been imposed but for the unusual facts of the case (para 17);

(3) The respondent had not contributed to the unusual facts, in consequence of which he had to, and did, serve 8 months in the Training Centre before the review hearing in the Court of Appeal (para 21);

(4) The reports stated that he had behaved well generally in the Detention Centre (para 15(3));

(5) Judging from his rather early release from the Training Centre in few months’ time, his performance ought not to have been poor*;

(6) In the circumstances, to disregard such 8 months in the Training Centre and put him in prison afresh would be intrinsically unjust to him (para. 22).

(*My own supplement underlined)

Sentencing this defendant

11.I do not agree that he is caught by any unusual facts.  He is still and will be for some time serving a Detention Centre order for 3 rather serious offences.  He cannot even start to complain of any injustice for any disregarded term under a prospective Training Centre order as much as Lau Shing Kit (above).  On the contrary, a prison term will relieve him of further stay in the Detention Centre and do away with the bounds of recall.    

12.He was 1 day short of 17 as he committed the offence.  This is a matter of little significance as he has had quite a sufficient experience in the wrong side of the law.  I take a starting point of 6 years.  He can have a one-third off for his plea of guilty.  With no other effective mitigating factors, his sentence is 4 years.